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\4T\ \ 4__; Enforcement of the Fourteenth Amendment. 


SPEECH 

HON. JAMES 

* # 

OF 


IN THE HOUSE OF REPRESENTATIVES, 

r 

. APRIL 4, 1871. 


. V' : <-• 

A. GARFIELD, 

/ I * 

OHIO, 


“Sec. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, 
are citizens of the United States and the States wherein they reside. No State shall make or enforce any 
law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 
deprive any person of life, liberty, or happiness without due process of law, nor deny to any person within 
its jurisdiction the equal protection of the laws.”— Constitution, Art. XIV. 



WASHINGTON: 

F. & J. RIVES & GEO. A. BAILEY, 

REPORTERS AND PRINTERS OF TIIE DEDATES OF CONGRESS, 

1871 . 





















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Enforcement of the Fourteenth Amcrn'mcnt. 




The House having under consideration the bill 
(II. It. No. 320) to enforce the provisions of the four¬ 
teenth amendment to the Constitution of the United 
States, and for other purposes— 

Mr. GARFIELD, of Ohio, said : 

Mr. Speaker : I am not able to understand 
the mental organization of the man who can 
consider this bill, and the subject of which it 
treats, as free from very great difficulties. He 
must be a man of very moderate abilities, 
whose ignorance is bliss, or a man of trans¬ 
cendent genius whom no difficulties can daunt 
and whose clear vision no cloud can obscure. 

The distinguished gentleman [Mr. Shella- 
barger] who introduced the bill from the com¬ 
mittee very appropriately said that it requires 
us to enter upon unexplored territory. That 
territory, Mr. Speaker, is the neutral ground 
of all political philosophy; the neutral ground 
for which rival theories have been struggling 
in all ages. There are two- ideas so utterly 
antagonistic that when, in any nation, either 
has gained absolute and complete possession^ 
that neutral ground, the ruin of that nation has 
invariably followed. The one is that despot¬ 
ism which swallows and absorbs all power in 
a single-central, government; the’tother is that 
extreme doctrine of local sovereignty which 
makes nationality impossible and resolves a 
general government into anarchy and chaos. 
It makes but little difference as to the tinal 
result which of these ideas drives the other 
from the field; in either case, ruin follows. 

The result exhibited by the one, was seen 
in the Araphictyonic and Achtean leagues of 
ancient Greece, of which Madison, in the twen¬ 
tieth number of the Federalist, says: 

“The inevitable result'of all was imbecility in 
the government, discord among the provinces, for¬ 
eign influences and indignities, a precarious exist¬ 
ence in peace and peculiar calamities in war.” 

) This is a/fitting description of all nations 
who have carried the doctrine of local self- 
government so far as to exclude the doctrine 
of nationality. They were not nations, but 


mere leagues bound together by common con¬ 
sent, ready to fall to pieces at the demand of 
any refractory member. The opposing idea 
was never better illustrated than when Louis 
XIV entered fhe French Assembly, booted 
and spurred, and girded with the sword of 
ancestral kings, and said to the deputies of 
France, “The State! I am the State! ” 

Between these opposite and extreme the¬ 
ories of government, the people have been 
tossed from century to century ; and it has 
been only when these ideas have been in rea¬ 
sonable equipoise, when this neutral ground 
has been held in joint occupancy, and usurped 
by neither, that popular liberty and national 
life have j^een possible. How many striking 
illustrations of this do we see in the history of 
France! The despotism of Louis XIV, fol¬ 
lowed by reign Ijpf terror, when liberty had run 
mad and France was a vast scene of blood and 
ruin! We see it again in our day. Only a 
few years ago the theory of personal govern¬ 
ment had placed into the hands of Napoleon 
111 absolute and irresponsible power. The 
communes of France were crushed, and local 
liberty existed no longer. Then followed Sedan 
and the rest. On the 1st day of last month; 
when France was trying to rebuild her ruined 
Government, when the Prussian cannon had 
scarcely ceased thundering against the walls 
of Paris, a deputy of France rose in the Na¬ 
tional Assembly and moved as the first step 
toward the safety of his country, that a com¬ 
mittee of thirty should be chosen, to be called 
the Committee of Decentralization. But it was 
too late to save France from the fearful reaction 
from despotism. The news comes to us, under 
the sea, that on Saturday last the cry was ring¬ 
ing through France, “Death to the priests, 
and death to the rich!” and the swords of the 
citizens of that new republic are now wet with 
each other’s blood. 

EQUIPOISE OF OUR GOVERNMENT. 

The records of time show no nobler or 
wiser work done by human, hands than that 





4 


of our fathers when they framed this Republic. 
Beginning in a wilderness world, they wrought 
unfettered by precedent, untrammeled by cus¬ 
tom, ujiawed by kings or dynasties. With 
the history of other nations before them, they 
surveyed the new field. In the progress of 
their work they encountered these antagonistic 
ideas to which I have referred. They at¬ 
tempted to trace through that neutral ground 
the boundary line across which neither force 
should pass. The result of their labors is our 
Constitution and frame of government. I 
never contemplate the result without feeling 
that there was more than mortal wisdom in 
the men who produced it. It has seemed to me 
that they borrowed their thought from Him 
who constructed the universe and put it in 
motion. For nothing more aptly describes 
the character of our Republic than the solar 
system, launched into space by the hand.of 
the Creator, where the central sun is the great 
power around which revolve all the planets in 
their appointed orbits. But while the sun holds 
in the grasp of its attractive power the whole 
system, and imparts its light and heat to all, 
yet each individual planet is under the sway 
of laws peculiar to itself. 

Under the sway of terrestrial laws, winds 
blow, waters flow, and all the tenantries of 
the planet live and move. So, sir, the States 
move on in their orbits of duty and obedience, 
bound to the central Government by this Con¬ 
stitution, which is their supreme law; while 
each State is making laws and regulations of 
its own, developing its own energies, main¬ 
taining its own industries, managing its local 
affairs in its own way, subject only to the 
supreme but beneficent control of the Union. 
When State rights run-mad, put on the form 
of secession, and attempted to drag the States 
out of the Union, we saw the grand lesson 
taught, in all the battles of the late war, that a 
State could no more be hurled from the Union 
without ruin to the nation, than could a planet 
be thrown from its orbit without dragging after 
it, to chaos and ruin, the whole solar universe. 

Sir, the great war for the Union has vin¬ 
dicated the centripetal power of the nation, 
and has exploded, forever I trust, the disor¬ 
ganizing theory of State sovereignty which 
slavery attempted to impose upon this country. 
But we should never forget that there is danger 
in the opposite direction. The destruction or 
serious crippling of the principle of local gov¬ 
ernment would be as fatal to liberty as secession 
would have been fatal to the Union. 

The first experiment which our fathers tried 
in government-making after the War of Inde¬ 
pendence was a failure, because the central 
power conferred in the Articles of Confedera¬ 
tion was not strong enough. The second, 
though nobly conceived, became almost a fail¬ 
ure because slavery attempted so to interpret 
the Constitution's to reduce the nation again 


to a confederacy, a mere league between sover¬ 
eign States. But we have now vindicated and 
secured-the centripetal power; let us see that 
the centrifugal force is not destroyed, but that 
the grand and beautiful equipoise may be 
maintained. 

LOCAL SELF-GOVERNMENT. 

No more beautiful thought was embodied in 
the structure of our Republic than this: that 
our fathers did so distribute the powers of gov¬ 
ernment that no one power should be able to 
swallow, absorb, or destroy the others. In this 
distribution, it is provided that many, indeed 
most of the functions of government, shall be 
exercised immediately under the eyes of the 
people themselves. Let me illustrate this by 
the system of taxation in my own State. I have 
here a statement of the taxation of the State 
of Ohio for the last year. There were raised 
in 1870, under State laws, nearly twenty-four 
millions of dollars. Less than five millions of 
the twenty-four found their way to the State 
Treasury at Columbus. Less than four mil¬ 
lions, indeed, were used for central purposes. 
Nineteen of the twenty-four millions were levied 
within the townships and the counties, under 
the direction of township trustees, city and 
county officers ; and, in accordance with the 
general laws of the State, these sums were 
expended at home, under the direction of the 
very men who specially consented that the tax 
should be levied. Twelve and a half millions 
were raised and expended in the townships. 

Mr. Speaker, how often have you heard of 
embezzlement or defalcation by township offi¬ 
cers ; though, as in Ohio, more than half of all 
the taxes raised are kept in the treasuries of 
the townships? Where in the the nation is 
there so wise and so honest an administration 
of affairs as in the townships, under the eye of 

t people who have approved the levy, and 
o watch the expenditure of the money? 
We have sometimes heard of defalcations of 
county treasurers, because they live some dis¬ 
tance away^rom the Argus-eyes which watch 
over their proceedings. We have oftener heard 
of State defalcations, because State officers are 
still further away. And oftener still we hear 
of national defalcations, where the power is 
exercised still further away from the people 
who grant it. I mention this as an illustration 
of the character of our Government. 

The illustration might be extended with 
equal force to the administration of justice in 
townships and counties, where offenses against 
persons and property are tried before judges 
of the people’s own choosing, and before 
jurors who are the neighbors of the parties, 
and who can administer justice far better than 
is possible at distant and remote points, where 
both court and jury are strangers to the parties. 

But I turn from these general remarks to 
the consideration of those features of our 













5 


Constitution which relate more immediately 
to the subject of the bill now before the House. 

PROTECTION OF PERSONS AND PROPERTY BEFORE THE 
LATE AMENDMENTS. 

I presume it will not be denied, that before 
the adoption of the last three amendments it 
was the settled interpretation of the Consti¬ 
tution that the protection of the life and prop¬ 
erty of private citizens within the States be¬ 
longed to the State governments exclusively. 

I will, however, fortify this position by a few 
authorities which will not be questioned. Mr. 
Madison says, in the forty fifth number of the 
Federalist: 

“The powers reserved to the several States will 
extend to all the objects which, in the ordinary 
course of affairs, concern the lives, liberties, and 
properties of the people, and the internal order, 
improvement, and prosperity of the State.” 

In the celebrated case of Cohens vs. Vir¬ 
ginia (6 Wheaton, page 424) the Supreme 
Court takes the same ground : and Mr. Story, 
in his Commentaries on the Constitution, sec¬ 
tion twelve hundred and twenty six, quotes 
with approval the following passage from that 
opinion of the court: 

“ Congress has a right to punish murder in a fort 
or other place within its exclusive jurisdiction, but 
has no general right to punish murder committed 
within any of the States.” 

In February, 18G6, while debating a proposed 
amendment to the Constitution, which in its 
final form became the fourteenth article, my 
colleague [Mr. Bingiiam] quoted the passage 
from the Federalist which I have already 
quoted, and then said: 

‘‘These words of Madison arc very significant. The 
fact is that Congress has never, by official enactment 
in all the past, attempted to enforce these rights of 
the people in any State of the Union.”— Globe, Thir¬ 
ty-Ninth Congress, page 1093. 

In the same debate he also said: 

“ We have not now the power, in time of pcace„to 
enforce the citizen’s right to life, liberty, ancl'prop- 
erty within the limits of South Carolina, alter her 
State government shall be recognized and her con¬ 
stitutional relations restored.” 

On the 9th of March, 18G6. when the civil 
rights bill was under debate, Mr. Bingham also 

Said : 

“ The Constitution does not delegate to the United 
States a power to punish offenses against the life, 
li berty, and property of citizens in the States; nor 
does it prohibit that power to the States, but leaves 
it as the reserved right of the States, to be by them 
exercised.”— Globe , page 1291. 

And again, in the same speech : 

‘‘I have always believed that protection in time 
of peace within the States of all rights of persons 
and citizens was of the powers reserved to the 
States, and so I still believe.”— Globe, page 1293i 

While the first section of the civil rights 
bill was under debate my colleague [Mr. Shsl- 
labarger] said: 

‘‘ If this section did in fact assume to confer or 


define or regulate tliesccivil rights which are named 
by the words contract, sue, testify, inherit, &c.,rhen 
it would, as seems to me, bo an assumption of the 
reserved rights of the States and of the people.”— 
Globe , page 1293. 

« *’ The bill does not reach mere private wrongs, but 
only those done undercolor of State authority, and 
that authority must be extended on account of race 
or color. It is meant, therefore, not to usurp the 
powers of the States to punish offenses generally 
against the rights of citizens in the several States, 
but its whole force is expended in defeating an at¬ 
tempt, under State laws, to deprive races and the 
members thereof, as such, of the rights enumerated 
in this act. This is the whole of it.”— Globe, page 
1294. 

In the same debate Mr. Delano, of Ohio, 
now Secretary of the Interior, speaking of the 
Constitution said : 

“ It was never designed to take away from the 
States the right of controlling their citizens in 
respect to property, liberty, and life. If we now go 
on in a system of legislation based upon the assump¬ 
tion that Congress possesses the right of supremo 
control in this respect, I submit whether we are not 
assisting to build up a consolidated Government in 
view of the powers of which we may well trem¬ 
ble.”— Appendix, page 158. 

Authorities fnightbe cited to a much greater 
length. They all concur in the statement with 
which I set out, that the power to protect the 
life and property of private citizens within the 
States, was left by the Constitution exclusively 
to the State governments. 

PROTECTION OF PERSONS AND PROPERTY UNDER THE 
LATE AMENDMENTS. 

Now, threeamendments, the thirteenth, four¬ 
teenth, and fifteenth, have been added to the 
Constitution, and it will not be denied that 
each of these amendments has so modified 
the Constitution as to change the relation of 
Congress to the citizens of the States. They 
have to some extent enlarged the functions of 
Congress, and, within prescribed limits, have 
extended it's jurisdiction within the States. 

I now inquire how far irhis jurisdiction has 
been extended. The thirteenth amendment 
provides that slavery shall never exist within 
the United States, or any place subject to their 
jurisdiction, and Congress is empowered to 
enforce this provision on every inch of soil cov¬ 
ered by our flag. Congress may by its legis¬ 
lation prevent any person from being made a 
slave by any law, usage, or custom, or by any 
act direct or indirect This, I presume, will 
not be denied; and Congress has effectually 
carried out this provision. 

Jn the fifteenth amendment, the last of the 
three, the rights of citizens of the United 
States to vote shall not be denied or abridged, 
either by the United States or by any State, in 
consequence of race, color, or previous con¬ 
dition of servitude. And that, taken in con: 
nection with the clause in the main text of the 
Constitution, which authorizes Congress to 
regulate the time, place, and manner of hold¬ 
ing elections, arms Congress with the full 
power to protect the ballot-box at all elec¬ 
tions, at least of officers of the United States, 




















6 


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and to protect the right of all men within the 
limit of that clause to the suffrage. On this 
point, I presume, there will be no difference 
of opinion, at least on this side of the House. 
In pursuance of this power we passed the act 
of May 31. 1870, and the amendatory act of 
February 28, 1871. 


FIRST SECTION OF THE FOURTEENTH AMENDMENT. 

I now come to consider last in order, for it 
is the basis of the pending bill, the fourteenth 
amendment. I ask the attention of the House 
to the first section of that amendment, as to its 
scope and meaning. I hope gentlemen will 
bear in mind that this debate, in which so many 
have taken part, will become historical, as the 
earliest legislative construction given to this 
clause of the amendment. Not only the words 
which we put into the law, but what shall be 
said herein the way of defining and interpreting 
the meaning of the clause, may go far to settle 
its interpretation and its value to the country 
hereafter. 

No thorough discussion of this clause is pos¬ 
sible which does not include a history of some 
of the leading facts connected with its origin 
and its adoption by Congress. I will therefore 
state briefly the proceedings of this House on 
the first form of amendment proposed on the 
subject embraced in the first section of the 
fourteenth amendment, as it now stands in 
the Constitution. 


THE REJECTED AMENDMENT. 

On the 13th February, 1866, Mr. Bingham 
reported, from the joint Committee on Recon¬ 
struction, a joint resolution proposing the fol¬ 
lowing amendment to the Constitution of the 
United States: 

“Article —. The Congress shall have power to 
make alllaws which shall be necessary and proper to 
secure to the citizens of each State all the privileges 
and immunities of citizens in the several States; and 
to all persons in the several States equal protection 
in the rights of life, liberty, and property.” 

The debate proceeded at great length, and 
the necessity for increased protection to those 
who had lately been slaves, against the hostile 
legislation of the States, was strongly urged. 
I will quote a few paragraphs from the debate, 
to show some of the leading reasons that were 
urged for and against the proposition. 

Mr. Higby, of California, insisted that this 
amendment was necessary in order to protect 
the lives and property of the citizens in the 
South. He showed how, under the thirteenth 
amendment, the laws of the States might be so 
administered as to put black men into slavery 
under pretense of sentencing them for crime, 
and that without additional power given to Con¬ 
gress the General Government could not pre¬ 
vent such a result. (Globe, February 27, page 
1056.) 

Others urged the amendment on the same 
and similar grounds. 


Mr. Hale, of New York, opposed the amend¬ 
ment. He said that under it— 

“All State legislation, in its codes of civil and 
criminal jurisprudence and procedure, affecting the 
individual citizen, may be overriden, may be re¬ 
pealed, and abolished, and the laWof Congress estab¬ 
lished instead. I maintain that in this respect it 
is an utter departure from every principle ever 
dreamed of by the men who framed our Constitu¬ 
tion.”— Globe , page 1063. 

On the 28th of February my colleague [Mr. 
Bingiiam] made a very able and elaborate 
speech in defense of the amendment. He 
based its necessity on the fact that Congress 
had then no power to legislate for life, liberty, 
and property within the States. He affirmed, 
also, that the guarantees of the rights of prop¬ 
erty and person named in the fifth article of 
amendments to the Constitution were not lim¬ 
itations on the State governments, but only on 
Congress. To support this position he quoted 
the case of Barron vs. The Mayor and City 
Council of Baltimore, (7 Peters, page 247;) 
also, Lessee of Livingston vs. Moore, (7 Peters, 
page 251;) also, 3 Webster, page 471; and then 
said, (Globe, page 1090:) 

“The question is simply whether you will give by 
this amendment, to the people of the United States, 
the power, by legislative enactment, to punish offi¬ 
cials of States for violation of the oaths enjoined 
upon them by their Constitution.” 

In the course of Mr. Bingham’s speech, 
Judge Hale, of New York, asked him— 

“ Whether, in his opinion, this proposed amend¬ 
ment to the Constitution does not confer upon Con¬ 
gress a general power of legislation for the pur¬ 
pose of securing to all persons in the several States 
protection of life, liberty, and property, subject 
only to the qualification thatthatprotection shall be 
equal.” 

“ Mr. Bingham. I believe itdoesin regard to life, 
liberty, and property, as I have heretofore stated it, 
the righttoreal estate being dependent on the State 
law, except when granted by the United States. 

“Mr. Hale. I desire toknow if he meanstoimply 
that it extends to personal estate. 

“Mr. Bingham. Undoubtedly it is true.” 

Mr. Conkling, now a Senator from the State 
of New York, during the same debate said of 
this amendment: 

“It was introduced several weeks ago, and con¬ 
sidered in a committee of fifteen. At that time and 
always I felt constrained to withhold from it my 
support as one of the committee, and when the con¬ 
sent of the committee was given to its being reported 
I did not concur in the report.”— Globe, page 1094. 

Mr. Hotchkiss, of New York, said: 

“ I understand the amendment, as now proposed 
by its terms, to authorize Congress to establish uni¬ 
form laws throughout the United States upon the 
subject named, the protection of life, liberty, and 
property. I am unwilling that Congress shall have 
any such power.” 

I have been thus particular in reviewing the 
history of this debate, in order to show the 
sentiment that then prevailed in this House 
in regard to one of the theories which we are 
asked to adopt in this debate. 

Now, let it be remembered that the proposed 


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7 


amendment was a plain, unambiguous propo¬ 
sition to empower Congress to legislate directly 
upon the citizens of all the States in regard to 
their rights of life, liberty, and property. 
Mark the action of the House. After a debate 
of two weeks, the record of which covers more 
than one hundred and fifty columns of the 
Globe, and in which the proposed amendment 
was subjected to a most searching examina¬ 
tion, it became evident that many leading 
Republicans of this House would not consent 
to so radical a change in the Constitution, and 
the bill was recommitted to the joint select 
committee. 

Mr. BINGHAM. The gentleman is mis¬ 
taken. A motion was made to lay that amend¬ 
ment on the table. There were 41 votes in 
favor of the motion and 110 against it. I 
voted myself in favor of a postponement; 
but the measure was not recommitted, for I 
was a member of the committee and knew 
what it could do. 

Mr. GARFIELD, of Ohio. My colleague 
is technically right in saying that the measure 
was postponed. Of course the majority did 
not allow it to be laid on the table on motion 
of a member of the opposite party, and the 
motion was voted down, as my colleague*, has 
said. But the consideration pf the measure 
was postponed on motion of Mr. Conkling, 
who had opposed it from the start, and it did in 
fact go back to the committee, and was never 
again discussed in this House. What is more, 
it was never debated at all in the Senate, 
though it was introduced into that, body by Mr. 
Fessenden the same day that Mr. Bingham 
introduced it into the House. The whole his¬ 
tory of the case shows that it became perfectly 
evident, both to the members of the Senate 
and of the House, after the House debate, 
that the measure could not command a two- 
thirds vote of Congress, and lor that reason 
the proposition was virtually withdrawn. Its 
consideration was postponed February 28 by 
a vote ot 110 to 37. 

THE AMENDMENT AS ADOPTED. 

More than a month passed after this post¬ 
ponement, or recommittal, without further 
action in either House. On the 30th April, 
1866, the fourteenth amendment was intro¬ 
duced into the House, and the first section 
was precisely as it now stands in the Consti¬ 
tution, except that the first sentence of the 
present text was not in the draft. The new 
form of amendment was also debated at great 
length. The gentleman who reported it, from 
the committee, the late Mr. Stevens, of Penn¬ 
sylvania, said that it came far short of what he 
wished, but, after full consideration, he believed 
it the most that could be obtained. 

Mr. BINGHAM. My colleague will allow 
me to correct him again. The remark of Mr. 
Stevens hud no relation whatever to that pro¬ 


vision, none at all. That is all I have to say 
oil that point now. 

Mr. GARFIELD, of Ohio. My colleague 
can make but he cannot unmake history. I 
not only heard the whole debate at the time, 
but I have lately read over, with scrupulous 
care, every word of it as recorded in the Globe. 

I will show my colleague that Mr. Stevens did 
speak specially of this very section. 

The debate on this new proposition, which 
afterward became the fourteenth amendment, 
was opened by Mr. Stevens, May 8th, in a 
characteristic and powerful speech. He spoke 
of the difficulties which the joint committee 
on reconstruction had encountered, and of 
the long struggle they had had to reach any 
proposition on which the friends of the amend¬ 
ment could unite. lie said: 

"The proposition is not all that the committee 
desired. It falls far short of my wishes, but it fulfills 
my hopes. I believe it is all that can be obtained in 
the present state of public opinion.” * * * * 

” The first section prohibits the States from abridg¬ 
ing the privileges and immunities of citizens of the 
United States, or unlawfully depriving them of life, 
liberty, and property, or of denying to any person 
within their jurisdiction the 4 equal’ protection of 
the laws. 

“I can hardly believe that any person can be found 
who will not admit that every one of these provis¬ 
ions is just. .They are all asserted, in some form or 
other, in our Declaration or organic law. But the 
Constitution limits only the action of Congress, and 
is not a limitation on the States. This amendment 
supplies that defect and allows Congress to correct 
the unjust legislation of the States, so far that the 
law which operates upon one man shall operate 
equally upon all. Whatever law punishes a white 
man for acrimeshailpunish the black man precisely 
in the same way and to the same degree. Whatever 
law protects the white man shall afford 4 equal’ 
protection to the black man. Whatever means of 
redress is afforded to one shall be afforded to all. 
Whatever law allows thd white man to testify in 
court shall allow the man of color to do the same. 
These are greatadvantagesover their present codes. 
Now different degrees of punishment are inflicted, 
not on account of the magnitude of the crime, but 
according to the color of the skin. Now color dis¬ 
qualifies a man from testifying in the courts or being 
tried in the same way as white men. I need not 
enumerate these partial and oppressive laws. Un¬ 
less- the Constitution should restrain them, those 
States will all, I fear, keep up this discrimination 
and crush to death the hated freedmen.”— Globe , 
page 2459. 

In the long debate which followed this sec¬ 
tion of the amendment was considered as equiv¬ 
alent to the first section of the civil rights bill, 
except that a new power was added in the 
clause which prohibited any State from depriv¬ 
ing any person within its jurisdiction of the 
equal protection of the laws. The interpreta¬ 
tion of this first section, as given by Mr. Ste¬ 
vens, was the one followed by almost every 
Republican who spoke on the measure. It was 
throughout the debate, with scarcely an excep¬ 
tion,, spoken of as a limitation of the power 
of the States to legislate unequally for the pro¬ 
tection of life and property. On the 9th of 
May Mr. Eliot, of Massachusetts, said : 

“ I support the first, section because the doctrine it 
j declares is right, and if under the Constitution as it 















row stands Congress lias not tho power to prohibit 
State legislation discriminating against any classes 
of citizens or depriving any persons of life, liberty, 
and property without due process of law, or denying 
to any persons within the State the equal protection 
of the laws, then, in my judgment.such powershould 
be distinctly conferred .”—Page 2511. 

Mr. Farnsworth approved the amendment 
but said that the first section might as well be 
reduced to these words: “No State shall deny 
to any person within its jurisdiction the equal 
protection of the laws,” for that was the only 
provision in it which was not already in the 
Constitution. (Page 2539.) 

It is noticeable also that no member of the 
Republican party made any objection to this 
section on the grounds on which so many had 
opposed the former resolution of amendment; 
but many expressed their regret that the arti¬ 
cle was not sufficiently strong. 

Mr. Shanklin, of Kentucky, a Democrat, 
said: 

“ The first section of this proposed amendment to 
the Constitution is tostrike down the reserved rights 
of the States and invest all the power in the Fed¬ 
eral Government .”—Page 2500. 

Mr. Rogers, of New Jersey, a Democrat, 
took similar ground. (Page 2538.) 

These are the only declarations! find in the 
House debates, either by Democrats or Re¬ 
publicans, indicating that this clause was re¬ 
garded as placing the protection of the funda¬ 
mental rights of life and property directly irf 
the control of Congress ; and these declara¬ 
tions of Shankling and Ro’gers were general 
and sweeping charges, not sustained even by 
specific statement. 

I close this citation of speeches on the 
amendment by quoting the view taken of the 
scojie and meaning of this first section by my 
colleague, [Mr. Bingham.] He said: 

“This section gives power to protect by national 
law the privileges and immunities of all the citizens 
of the Republic and the inborn rights of every per¬ 
son within its jurisdiction whenever the same shall 
bo abridged or denied by unconstitutional acts of 
any State. 

“Allow me, Mr. Speaker, in passing, to say that 
this amendment takes from no State any right that 
ever pertained to it. No State ever had the right, 
under the forms of law or otherwise, to deny to any 
freeman the equal protection of the laws, or to 
abridge the privileges or immunities of any citizen 
of the Republic, although many of them have 
assumed and exercised the power, and that without 
remedy .”—Page 2542. 

After a debate on this new proposition which 
lasted several days and evenings, the amend¬ 
ment passed the House May 10, 1866, by a 
vote of 128 ayes to 37 noes, not one Repub¬ 
lican voting against it. It will not be denied, as 
a matter of history, that this form of amend¬ 
ment received many Republican votes that the 
first form to which I have referred could not 
have received. In the Senate there was but 
little debate on the first section and no change 
was made in it, except that, on the motion of 


Mr. Howard, of Michigan, these words were 
added at the beginning of the section: 

“All persons born or naturalized in the United 
States and subject to thcjurisdiction thereof areciti- 
zens of the United States and of the States wherein 
they reside.” 

Other changes were made by the Senate in 
other sections of the amendment, and the 
whole, as amended, passed June 8, by a vote 
of 33 to 11. 

On the 13th of June the House passed the 
article, with the Senate amendments, by a 
vote of 120 to 32, every Republican present 
voting for it. 

THE REJECTED AND THE ADOPTED AMENDMENTS COM¬ 
PARED. 

With this review of the history of the clause 
rejected and that adopted in our minds, I ask 
gentlemen to consider the difference between 
the two. Putting the fifth clause of the amend¬ 
ment first, and, to make the comparison closer, 
omitting the definition of citizenship, the sec¬ 
tion as adopted reads thus : 

“The Congress shall have power to enforce,.by 
appropriate legislation, the following provisions”— 

To wit: 

State shall make or enforce any law which 
shall abridge thefirivilegesor immunities of citizens 
of tho United States; nor shall any State deprive 
any person of life, liberty, or property without due 
process of lav/, nor deny to any person within its 
jurisdiction the equal protection of the laws.” 

And this is the rejected clause: 

“ The Congress shall havo power to make all laws 
which shall be necessary and proper to secure to tho 
citizens of each State all the privileges and immun¬ 
ities of citizens in the several States, and to all per¬ 
sons in the several States equal protection in tho 
rights of life, liberty, and property.” 

The one exerts its force directly upon the 
States, laying restrictions and limitations upon 
their power and enabling Congress to enforce 
these limitations. The other, the rejected, 
proposition, would have brought the power 
of Congress to bear directly upon the citizens, 
and contained a clear grant of power to Con¬ 
gress to legislate directly for the protection of 
life, liberty, and property within the States. 
The first limited but did not oust the jurisdic¬ 
tion of die State over these subjects. The 
second gave Congress plenary power to cover 
the whole subject with its jurisdiction, and, as 
it seems to me, to the exclusion of the State 
authorities. 

Mr. Speaker, unless we ignore both the 
history and the language of these clauses we 
cannot, by any reasonable interpretation, give 
to the section, as it stands in the Constitution, 
the force and effect of the rejected clause. 

POWERS GRANTED IN THE FIRST SECTION. 

Mr. Speaker, I now inquire to what extent 
this section does enlarge the powers of Con¬ 
gress. On the proper answer to this inquiry 


















9 


will chiefly rest our power of legislation on 
the subject before us. The first sentence of 
the section defines 

CITIZENSHIP. 

It declares that— 

^ “All persons born and naturalized in the United 
States and subject to the jurisdiction thereof are 
citizens of the United States and of the State where¬ 
in they-reside.” 

On this thfeshold of the section, we find a 
conflict of opinion. In his very able speech, 
my colleague [Mr. Siiellabarger] has given 
us his interpretation of-this first sentence. He 
says: 

“TheUnited States added to its Constitution what 
was not in it before; because never before was it 
found in the Constitution in express words that all 
people in this country were citizens of the United 
States as well as of the States. This was added, and 
added for a purpose.” 

lie also says : 

“The making of them United States citizens and 
authorizing Congress by appropriate law to protect 
that citizenship gave Congress power to legislate 
directly for enforcement of such rights as are funda-* 
mental elements of citizenship. 

“This, sir, is the foundation idea on which this sec¬ 
tion and the whole bill rest for their constitutional 
warrant. If right, it solves every possible doubt and 
difficulty in every part of this great inquiry,” 

Now, Mr. Speaker, I desire to call the atten¬ 
tion to this statement, that in putting into the 
Constitution a definition of citizenship there 
was given to Congress a great power which did 
not before exist in the Constitution. Can my 
colleague by any possibility forget that pro¬ 
vision of the Constitution which declares that 
“no person shall be a Representative who shall 
not have been seven years”—what? “A citi¬ 
zen of the United States.” Can he forget that 
other clause which declares that “no person 
shall be a Senator of the United States who 
shall not have been nine years a citizen ef the 
United States?” Can he forget that in article 
two, section one, it is declared that “no per¬ 
son except a natural-born citizen, or a citizen 
of the United States at the adoption of the 
Constitution, shall be eligible to the office of 
President?” Were there no citizens of the 
United States until the fourteenth amendment 
passed? Was my colleague any less a citizen 
of the United States when he sat in the Thirty- 
Ninth Congress than he is to-day? Sir, the 
citizens of the United States made this Con¬ 
stitution. It was not the Constitution that 
made us citizens. The people who ordained 
and established the Constitution were citizens 
when they made that instrument. 

I know my colleague limits his statement by 
saying that the Constitution did not before say, 
“in express words, that all the people in this 
country were citizens of the United States ;” 
but I ask him and all who hear me to say 
whether this was not as true before the adop¬ 
tion of the fourteenth amendment as it is to¬ 
day. The only doubt I ever heard expressed 


on this point was whether slaves became citi¬ 
zens of the United States by the act of eman¬ 
cipation. If they did, the proposition was 
wholly true, before as well as after the adop¬ 
tion of the amendment. 

I hold in my hand Paschal’s annotated 1 edi¬ 
tion of the Constitution, four pages and a half 
of which are filled with references tq decis¬ 
ions of the courts, from the beginning of the 
century until now, declaring in the plainest 
terms that all free persons, born or naturalized 
in the United States, are citizens thereof. A 
weak attempt was made in the Dred Scott case 
to exclude free colored persons from the rights 
of citizenship, but that feature of the opinion 
was in opposition to the main body of previous 
precedents and to all subsequent decisions. I 
will quote but one or two of the many declara¬ 
tions of our constitutional teachers. Chancel- „ 
lor Kent says:' 

“ Citizens, under our Constitution and laws, mean 
free inhabitants born within the United States or 
naturalized under the laws of Congress.” 

******* 

“ If a slave born in the United States be manumit¬ 
ted or otherwise lawfully discharged from bondage, 
or if.a black man born in the United States becomes 
free he becomes thenceforward a citizen, but under 
such disabilities as the laws of the several States 
may deem it expedient to prescribe to persons of 
color.”— Ibid, 1; Kent's Commentaries, 292, note. 

In the admirable opinion of Attorney Gen¬ 
eral Bates, delivered to President Lincoln, 
November 29, 1862, this whole subject is 
thoroughly discussed. lie says : 

“ The Constitution does notmake thecitizen; itis, 
in fact, made by them. Every person born in the 
country is, at the moment of birth, prima facie, a 
citizen.” 

We have recognized this principle of citizen¬ 
ship in all our naturalization laws. We trans¬ 
form the subjects of foreign Governments into 
citizens of the United States whenever they 
comply with the terms of our naturalization 
laws. The civil rights bill broadly and fully 
affirms the doctrine I am here contending for. 

I remember the able speech of my colleague 
[Mr. Shellabarger] in favor of the civil 
rights bill, in the spring of 1866, before this 
fourteenth amendment had been adopted. The 
first sentence of that law is in these \frords: 

“Be it enacted, &c.. That all persons born in the 
United States, and not subject to any foreign Pow^r, 
excluding Indians not taxed, are hereby declared to 
be citizens.” 

My colleague and I then believed, as I now 
believe, that we were fully empowered to make 
this declaration of citizenship, and so the 
Republicans in this House and in the Senate 
believed. 

I do not by any means underrate the value 
and importance of the first sentence of t.h*e 
amendment. It set at rest forever a vexed 
and troublesome question. It brushed away 
all the legal subtleties and absurdities that were 
based on the supposed difference between cir.i- 












10 


zenship of the United States and citizenship 
of the States; and by declaring that every per¬ 
son born on the soil and subject to the juris¬ 
diction of the United States is a citizen both of 
the nation and of the State wherein he resides. 
It lifted into undoubted citizenship those who 
had been slaves, and thus resolved all doubts 
as to their civil condition. It is clear to my 
mind that this had already been done by the 
provisions of the civil rights bill. 

It whs held by Mr. Justice Swayne, in his 
learned opinion on the case of Rhodes vs. The 
United States, that the civil rights bill natu 
ralized all negroes born in this country who 
had been slaves, made them citizens, and gave 
them all the rights, privileges, and immuni¬ 
ties to which white men were entitled under 
the laws. The rights of the white citizens were 
made the standard to which all others were 
* lifted. But neither the civil rights bill nor the 
first sentence of the fourteenth amendment 
added to the rights already guarantied to the 
white citizen by the Constitution. 

If the view I have taken of citizenshipbe cor¬ 
rect, it follows that my colleague is in error when 
he attempts to find in the first sentence of this 
first section, the power to protect by congres¬ 
sional enactment, all the fundamental rights 
of persons and property within the States—a 
power which had theretofore, without question, 
belonged exclusively to to the State govern¬ 
ments. If my colleague’s reasoning on this 
point be valid, 1 do not see how he can stop 
short of ousting completely the jurisdiction of 
the States over these subjects. He makes the 
clause go to the full extent of the one which 
was rejected. 

I shall not be able in the hour assigned me 
to discuss with thoroughness all the paragraphs 
of this section, but I will notice them briefly. 

PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE 
UNITED STATES. 

The next clause is this: 

“No State shall make or enforce any law which 
shall abridge the privileges and immunities of the 
citizens of the United States.” 

The substance of this provision is in the 
main te.^t of the Constitution, and has again 
and again been interpreted by the courts. 

Mr. BINGHAM. The gentleman will please 
extmse me if I interrupt him. 

Mr. GARFIELD, of Ohio. Mytimeismore 
than half expired, and I hope my colleague 
will not unnecessarily consume it. 

Mr. BINGHAM. The first, in the first 
section of the fourteenth article of amend¬ 
ment, to wit, “no State shall make or enforce 
any law which shall abridge the privileges or 
immunities of citizens of the United States,” 
never were in the original text of the Consti¬ 
tution. The original text of the Constitution 
reads that the citizens of each State shall be 
entitled to the privileges and immunities of 


citizens of the several States; which were 
always interpreted, even by Judge Story, from 
whom the gentleman cited in the outset, to 
mean only privileges and immunities of cit¬ 
izens of the States, not of the United States. 

Mr. GARFIELD, of Ohio. 1 have made no 
statement which requires this criticism of my 
colleague. It is true that the main text of the 
Constitution which he quotes speaks of State 
citizenship; but as all persons free bo'rn or 
naturalized were citizens of the United States, 
it brings us to the same result as though 
national citizenship had been expressed in the 
section quoted, indeed, the Supreme Court 
declared, forty years ago, that “ a citizen ofthe 
United States residing in any State of the 
Union is a citizen of that State.” (Gassies 
vs. Ballou, 6 Peters, 761.) 

My colleague, [Mr. Siiellabarger,] and 
also the gentleman from Massachusetts, [Mr. 
Hoar,,] have given a breadth of interpretation 
to the force of these words “ privileges” and 
“immunities” which, in my judgment, are 
not warranted, and which go far beyond the 
intent and meaning of those who framed and 
those who amended the Constitution. The gen¬ 
tleman from Massachusetts said in his speech: 

“ Congress is empowered by the fourteenth amend¬ 
ment to pass all 4 appropriate legislation' to secure 
the privileges and immunities of the citizen. Now, 
what is comprehended in this term * privileges and 
immunities?’ Most clearly it comprehends all the 
privileges and immunities declared to belong to the 
citizen by the Constitution itself. Most clearly, 
also, it seems to me, it comprehends those privileges 
and immunities which all republican writers of 
authority agree in declaring fundamental and essen¬ 
tial to citizenship.” 

He then quotes from Judge Washington’s 
opinion in the case of Corfield vs. Coryell a 
statement that the fundamental rights of citi¬ 
zenship “are protection by the Government, 
the enjoyment of life and liberty, with the rightto 
acquire and possess property of every kind, and 
to pursue and obtain happiness and safety.” 

Now, sir, if this is to be the construction of 
the clause, the conclusion is irresistible that 
Congress may assert and maintain original 
jurisdiction over all questions affecting the 
rights of the person aud property of all pri¬ 
vate citizens within a State, and the State 
government may legislate upon this subject 
only by sufferance of Congress. It must be 
remembered that Judge Washington was in¬ 
terpreting the second section of the fourth 
article ot the Constitution, and that neither he 
in 1820, nor any other judge before or since, 
has authorized so broad a construction of the 
power of Congress as that proposed by the 
gentlemen to whom I refer. 

GUARANTEES OF LIFE, LIBERTY, AND PROPERTY. 

1 he next clause of the section under debate 
declares: 

“ Nor shall any State deprive any person of life, 
liberiy, or property, without due process of law.” 














11 


This is copied from tire Gfili article of amend¬ 
ments, with this difference: as it stood in the 
fifth article it operated only as a restraint 
upon Congress, while here it is a direct re¬ 
straint upon the governments of the States. 
The addition is very valuable. It realizes the 
full force and effect of the clause in Magna 
Charta, from which it was borrowed ; and there 
is now no power in either the State or the 
national Government to deprive any person 
of those great fundamental rights on which all 
true freedom rests, the rights of life, liberty, 
and property, except by due process of law ; 
that is, by an impartial trial according to the 
laws of the land. This very provision is in 
the constitution of every State in the Union; 
but it was most wise and prudent to place it 
in the serene firmament of the national Con¬ 
stitution, high above all the storms and tem¬ 
pests that may rage in any State. 

EQUAL PF.OTECTION OF TIIE LAWS. 

Mr. Speaker, I come now to consider the 
last clause of this first section, which is, as I 
believe, the chief and most valuable addition 
made to the Constitution in the section. That 
clause declares that no State shall “ deny to 
any person within its jurisdiction the equal 
protection of the laws.” This thought was 
never before in the Constitution, either in form 
or in substance. It was neither expressed in 
any words in the instrument, nor could it be 
implied from any provision. It is a broad and 
comprehensive limitation on the power of the 
State governments, and, without doubt, Con¬ 
gress is empowered to enforce this limitation 
by any appropriate legislation. Taken in con¬ 
nection with the other.clauses of this section, 
it restrains the States from making orenforcing 
laws which are not on their face and in their 
provisions of equal application to all the citi¬ 
zens of the State. It is not required that the 
laws of a State shall be perfect. They may 
be unwise, injudicious, even unjust; but they 
must be equal in their provisions, like the air 
of heaven, covering all and resting upon all 
with equal weight. The laws must not only 
be equal on their face, but they must be so 
administered that equal protection under them 
shall not be denied to any class of citizens, 
either by the courts or the executive officers 
of the State. 

It may be pushing the meaningof the words 
beyond their natural limits, but I think the 
provision that the States shall not “ deny the 
equal protection of the laws” implies thatlhey 
shall afford equal protection. 

Now, Mr. Speaker, to review briefly the 
ground traveled over: the changes wrought in 
the Constitution by the last three amendments 
in regard to the individual rights of citizens 
are these: that no person within the United 
States shall be made a slave; that no citizen 
shall be denied the right of suffrage because 


of his color or because he was once a slave; 
that no State, by its legislation or the enforce¬ 
ment thereof, shall abridge the privileges or 
immunities of citizens of the United States; 
that no State shall, without due process of 
law, disturb the life, liberty, or property of 
anyperson within its jurisdiction ; and finally, 
that no State shall deny to any person within 
its jurisdiction the equal protection of the 
laws. 

Thanks to the wisdom and patriotism of the 
American people, these great and beneficent 
provisions are now imperishable elements 
of the Constitution, and will, I trust, remain 
forever among the irreversible guarantees of 
liberty. 

ENFORCEMENT OF THE AMENDMENTS. 

IIow can these new guaranties be enforced? 
j In the first place, it is within the power of 
Congress to provide, by law, that cases aris¬ 
ing under the provisions of these amendments 
may be carried up on appeal from the State 
tribunals to the courts of the United States, 
where every law, ordinance usage, or decree- 
of any State in conflict with these provisions 
may be declared unconstitutional and void. 
This great remedy covers nearly all the ground 
that needs to be covered in time of peace; and 
this ground has already been covered, to a 
great extent, by the legislation of Congress. 

The civil rights act of I860, as reenacted by 
the law of May 21, 1870, opens the courts of 
the United States to all who were lately slaves, 
and to all classes of persons who by any State 
law or custom are denied the equal rights and 
privileges of white men. By the stringent and 
sweeping act of May 21, 1870. known as the 
enforcement act, and by the supplementary 
act of February 28, 1871, Congress has pro¬ 
vided the amplest protection of the ballot-box* 
and of the right of voters to enjoy the suf¬ 
frage as guarantied to them in the main text 
of the Constitution and in the fifteenth amend¬ 
ment. 

In the second place, it is undoubtedly within 
the power of Congress to provide by law for 
the punishment of all persons, official or pri¬ 
vate, who shall invade these rights, and who- 
by violence, threats, or intimidation shall 
deprive any citizen of their fullest enjoyment. 
This is a part of that general power vested in 
Congress to punish the violators of its laws. 

Under this head I had supposed that the- 
enforcement act of May 21,*1870. made ample- 
provision. I quote the sixth section : 

“Sec. 6. And hr it further enacted. That if two or 
more persons shall baud or conspire together, or go 
in disguise upon the public highway, or upon the 
premises of another, with intent to violate any pro¬ 
vision of this act, or to injure, oppress, threaten, oi 
intimidate any citizen with intent to prevent or hin¬ 
der his free exercise and enjoyment of any right or 
privilege granted or secured to him by the Guus.itu- 
lion or iaws of the United States, or because of bis 
having exercised the same, such persons shall be 


* 
















held guilty of felony, and, on conviction thereof, 
shall be fined or imprisoned,*or both, at the discre¬ 
tion of the court—the fine not to exceed $5,000, and 
the imprisonment not to exceed ten years—and shall, 
moreover, be thereafter ineligible to and disabled 
from holding any office or place of honor, profit, 
or trust created by the Constitution or laws of the 
United States.” 

The sixteenth and seventeenth sections add 
still furt her safeguards for the protection of 
the people. 

For the protection of all officers of the 
United States in the discharge of their duties, 
and for the enforcement of all the laws of the 
United States, our statutes make ample pro¬ 
visions. The President is empowered to use 
all the land and naval forces if necessary to 
execute these laws against all offenders. 

But, sir, the President has informed us in 
his recent message, that in some portions of 
the Republic wrongs and outrages are now 
being perpetrated, under circumstances which 
lead him to doubt his power to suppress them 
by means of existing laws. That new situa¬ 
tion confronts us. I deeply regret that we 
were not able to explore the length, breadth, 
and depth of this new danger before we under¬ 
took to provide a legislative remedy. The 
subject is so obscured by passion that jt is 
hardly possible for Congress, with the mate¬ 
rials now in our possession, to know the truth 
of the case, to understand fully the causes 
of this new trouble, and to provide wisely 
and intelligently the safest and most certain 
remedy. 

But enough is known to demand some action 
on our part. To state the case in the most 
moderate terms, it appears that in some of 
the southern States there exists a wide spread 
■secret organization, whose members are bound 
•together by solemn oaths to prevent certain 
classes of citizens of the United States from 
enjoying these new rights conferred upon 
them by the Constitution and laws: that they 
are putting into execution, their design of pre¬ 
venting such citizens from enjoying the free 
right of the ballot box and other privileges 
-and immunities of citizens, and from enjoying 
the equal protection of the laws. Mr. Speaker, 
I have no doubt of the power of Congress to 
provide for meeting this new danger, and to 
do so without trenching upon those great and 
beneficent powers of local self-government 
lodged in the States and with the people. To 
xeach this resuR is the demand of the hour 
"upon the statesmanship of this country. ' This 
brings me to the consideration of the pending 
bill. 

BILL TO ENFORCE THE FOURTEENTH AMENDMENT. 

The first section provides, in substance, that 
any person who, under color of any State law, 
ordinance, or custom, shall deprive any per¬ 
son of any rights, privileges, or immunities 
.-secured by the Constitution, the offender shall 
be liable to an action at law, or other proper 


proceeding, for redress in the several district 
or circuit courts of the United States. This 
is a wise and salutary provision, and plainly 
within the power of Congress. 

But the chief complaint is not that the laws 
of the State are unequal, but that even where 
the laws are just and equal on their face, yet, 
by a systematic maladministration of them, or 
a neglect or refusal to enforce their provisions, 
a portion of the people are denied equal pro¬ 
tection under them. Whenever such a state 
of facts is clearly made out, I believe the last 
clause of the first section empowers Congress 
to step in and provide for doing justice to those 
persons who are thus denied equal protection. 

Now if the second section of the pending bill 
can be so amended that it shall clearly define 
this offense, as I have described it, and shall 
employ no terms which assert the power of 
Congress to take jurisdiction of the. subject 
until such denial be clearly made, and shall 
not in any way assume the original jurisdiction 
of the rights of private persons and of prop¬ 
erty within the States—with these conditions 
clearly expressed in the section, I shall give 
it my hearty support. Th^se limitations will 
not impair the efficiency of the section, but 
will remove the serious objections that are 
entertained by many gentlemen to the section 
as it now stands. 

I have made these criticisms, not merely for 
the purpose of securing such an amendment 
to the section, but because I am unwilling that 
the interpretation which some gentlemen have 
given of the constitutional powers of Congress 
shall stand as the unconlradicted history of 
this legislation. Amendments have been pre¬ 
pared which will remove the difficulties to 
which I have alluded ; and I trust that my 
colleague [Mr. Shellabarger] and his com¬ 
mittee will themselves accept and offer these 
amendments. I am sure my colleague will 
understand that 1 share all his anxiety for the 
passage of a proper bill. It is against a dan¬ 
gerous and unwarranted interpretation of the 
recent amendments to the Constitution that I 
feel bound to enter my protest. 

Mr. SHELLABARGER. Mr. Speaker, 1 
know that my colleague [Mr. Garfield] is as 
sincerely convinced in regard to the proposi¬ 
tion that he has been contending for as a man 
ever w'as. And I want, therefore, to have the 
benefit of his candid reply to a suggestion 
which I will now make, and which may take 
perhaps a minute or two to state. 

I understand that the effect of what he says 
is, that as the first section of the fourteenth 
amendment to the Constitution is a negation 
upon the power of the States, and that as the 
fifth section of that amendment only author¬ 
izes Congress to enforce the provisions thereof, 
therefore Congress has no power by direct legis¬ 
lation to secure the privileges and immunities 
ol citizenship, because the provision in each 














« 


13 


section is in tbe form of a mere negation. 
Now, what I want to ask his attention to is 
this: first, he will recognize that by virtue of 
citizenship under the old Constitution there 
was no power in Congress to touch the ques¬ 
tion of the elective Iranchise; that was re¬ 
ferred by the old Constitution to the clause 
which said that electors should be those who 
were electors for the most numerous branch 
of the State Legislature. Now, then, the fif¬ 
teenth amendment was also a mere negation 
upon the powers of the States and of the Uni¬ 
ted States, saying that no State nor the United 
States shall take away the right to vote on 
account of color, race, &c. That also is 
another negation. The old clause in the Con¬ 
stitution in regard to elections did not give 
Congress the power to touch the question as 
to who should vote, but simply gave them 
power to regulate the time, place, and manner 
of casting the vote by those who could vote 
under State authority. Now, I ask my col¬ 
league’s attention to this. We have passed 
here an act which enforces the fifteenth amend¬ 
ment, which amendment was a mere negation 
also upon the power of the States. It is pro¬ 
vided in the first section of that act that all 
citizens of the United States shall have the 
right to go into the States from a mere nega¬ 
tion, to say who shall vote at township and 
every other election. Then, under the fif¬ 
teenth amendment, he goes directly to the 
citizen and punishes the man who deprives 
any one of the right to vote, which he gets 
under Federal law, and in contravention of 
the constitutions of one half of the States in 
the Union, as my learned colleague said the 
other day. I push him now and demand that 
he shall push his logic to its consequences. 

Mr. GARFIELD, of Ohio. If the case stands 
in all respects exactly as my colleague puts it, 
it might push me to the conclusion that some 
of the provisions of the enforcement act are 
unconstitutional; but I do not admit-either 
the premises or the conclusions. My colleague 
very well remembers that many distinguished 
men in this House and in the Senate claimed 
that the right of suffrage was in the old Con¬ 
stitution without this fifteenth amendment. 

Mr. SHELLABARGER. And many de¬ 
nied it. 

Mr. GARFIELD, of Ohio. It makes no dif¬ 
ference who denied it; the fact is, that it has 
again and again been elaborately argued upon 
this floor that the clause in the main text which 
gives to Congress the power to regulate the time, 
place, and manner of holding elections carried 
with it the whole question of suffrage. I was 
never able to believe that this clause went so 
far; but I %Iid believe, and I do now believe, 
that it goes so far that, with the fifteenth amend¬ 
ment superadded, Congress is armed with more 
than a mere negative power, and had the right 
to pass the enforcement law ol May last. 


But I call my colleague’s attention to the 
peculiar language of the fifteenth amendment. 
It is net, as his remarks imply, a mere pro¬ 
hibition to the State, a simple negation of 
power. It is a double prohibition, reaching, in 
terms, both the State and the United States. 
This is the language : 

Article XV. 

“ Section 1. The right of citizens of the United 
States to vote shall not bedenied or abridged by the 
United States or by any State on account of race, 
color, or previous condition of servitude. 

“Sec. 2. The Congress shall have power to en¬ 
force this article by appropriate legislation.” 

This double prohibition Congress may en¬ 
force. 

Now, Mr. Speaker, I call the attention of 
the House to the third section of the bill. I 
am not clear as to the intention of the com¬ 
mittee, but if I understand the language cor¬ 
rectly, this section proposes to punish citizens 
of the United States for violating State laws. If 
this be the meaningofthe provision, then when¬ 
ever any person violates a State law the Uni¬ 
ted States may assume jurisdiction of his 
offense. This would virtually abolish the ad¬ 
ministration of justice under State law. In so 
far as this section punishes persons who under 
color of any State law shall deny or refuse to 
others the equal protection of the laws. I give 
it my cheerful support; but when we provide 
by congressional enactment to punish a mere 
violation of a State law, we pass the line of 
constitutional authority. 

SUSPENSION OF THE PRIVILEGES OF HABEAS CORPUS. 

But, Mr. Speaker, there is one provision in 
the fourth section which appears to me both 
unwise and' unnecessary. It is proposed not 
only to authorize the suspension of the priv¬ 
ileges of the writ of habeas corpus , but to au¬ 
thorize the declaration of martial law in the 
disturbed districts. 

I do not deny, but I affirm the right of Con¬ 
gress to authorize the suspension of the priv¬ 
ileges of the writ of habeas corpus whenever 
in cases of rebellion or invasion the public 
| safety may require it. Such action has been 
! and may again be necessary to the safety of 
I the Republic: but I call the attention of the 
House to the fact that never but once in the 
history of this Government has Congress sus¬ 
pended the great privileges of this writ, and 
then it was not done until after two years of 
war had closed all the ordinary tribunals of 
justice in the rebellious districts, and the great 
armies of the Union, extending from Maryland 
to the Mexican line, were engaged in a death- 
struggle with the armies of the rebellion. It 
was not until the 3d day of March, 1803, that 
the Congress of the United States found the 
situation so full of peril as to make it their 
duty to suspend this greatest privilege enjoyed 
by Anglo-Saxon people. Are we ready to say 
U that an equal peril confronts us to day? 



















My objection to authorizing this suspension 
implies no distrust of the wisdom or patriotism 
of the President. I do not believe he would 
employ this power were we to confer it upon 
him j and if he did employ it, I do pot doubt 
he would use it with justice and wisdom. But 
what we do on this occasion will be quoted as a 
precedent hereafter, when other men with other 
purposes may desire to confer this power on 
another President for purposes that may not 
aid in securing public liberty and public peace. 

But this section provides no safeguard for 
citizens who may be arrested during the sus¬ 
pension of the writ. There is no limit to the 
time during which men may he held as prison¬ 
ers. Nothing in the section requires them to 
be delivered over to the courts. Nothing in 
it gives them any other protection than the 
will of the commander who orders their arrest. 

The law of March 3, 18C3, provided that 
whenever the privileges of the writ were sus¬ 
pended all persons arrested, other than pris 
oners of war, should be brought before the 
grand jury of some district or circuit court of 
the United States, and if no indictment should 
be found against them they must, on the dis¬ 
charge of the grand jury, be immediately dis 
charged from arrest; and the officer who should 
detain any unindicted person beyond that limit 
was liable to fine and imprisonment. 

Mr. SHELLABARGER. The bill refers it 
to the very law the gentleman cites; gives it 
to the operation of that law. 

Mr. GARFIELD, of Ohio. My colleague 
is mistaken ; the law of March 3, 18G3, was a 
temporary act and expired with the rebellion. 
11- is not contained in Brightly’s 'Digest, and 
is no longer in force. Should the writ be sus¬ 
pended, 1 shall ask the House to reenact the 
second section of the law of 1863. 

MARTIAL LAW. 

But, sir, this fourth section goes a hundred 
bowshots further than any similar legislation 
of Congress during the wildest days of the 
rebellion. It authorizes the declaration of 
martial law. We are called upon to provide 
by law for the suspension of all law 1 Do 
gentlemen remember what martial law is? 
Refer to the digest of opinions of the Judge 
Ad vocate General of the United States, and 
you will find a terse definition which gleams 
like the flash of a sword-blade. The Judge 
Advocate says: “Martial law is the will of 
the general who commands the army.” And 
Congress is here asked to declare martial law. 
Why, sir, it is the pride and boast of England 
that martial law has not existed in that coun¬ 
try since the Petition of Right in the thirty- 
first year of Charles II. Three years ago 
the lord chief justice of England came down 
from the high court over which he was pre¬ 
siding to review the charge of another judge 
to a grand jury, and he there announced that 


the power to declare martial law no longer 
exivSted in England. In 1867, the same judge, 
in the case of The Queen vs. Nelson, uttered 
this sentence: 

" There is no such law in existence as martial law, 
and no power in the Crown to proclaim it.” 

In a recent treatise entitled The Nation, a 
work of great power and research, the author, 
Mr. Mulford, says: 

“The declaration of mhrtial law, or the suspen¬ 
sion of the habea.it cotpue, is the intermission ot the 
ordinary course of law, and of the tribunals to which 
all appeal may be made. It places the locality in¬ 
cluded in its operations no longer under the govern¬ 
ment of la w. It interrupts the process of rights and 
the procedure of courts and restricts the independ¬ 
ence of civil administration. There is substituted 
for these the intention of the individual. Tenth is 
there is in the civil order no formal limitation. In 
its immediate action it allows beyond itself no obli¬ 
gation and acknowledgesno responsibility. Itscom- 
mand orits decree is the only law; its movement 
may be secret, and its decisions are open to the in¬ 
quiry of no judge and the investigation ot no tri¬ 
bunal. There is no positive power which may act, 
or be called upon to act, to stay its caprice or to check 
its arbitrary career since judgment and execution 
are in its own command, and the normal action and 
administration is suspended and the organized force 
of the whole is subordinate to it.”— Pageti 185-6. 

The Supreme Court, in ex parte Milligan, 
(4 Wallace, 124) examined the doctrine that 
in time of war the commander of an armed 
force has power within the lines of the mili¬ 
tary district to suspend all civil rights, and 
subject citizens as well as soldiers to the rule 
of his will. 

Mr. Justice Davis, who delivered the opinion 
of the court, said : 

“ If this position is sound to the extent claimed, 
then, when war exists, foreign or domestic, and the 
country is subdivided into military departments for 
mere convenience, the commander of one of them 
can, if he chooses, within his limits, on the plea of 
necessity, with the approval of the Executive, sub¬ 
stitute military force for and to the exclusion of the 
laws, and punish all persons as ho thinks right and 
proper, without fixed or certain rules. 

“ The statement of this proposition shows its im¬ 
portance; for, if true, republican government is 
a failure, and there is an end of liberty regulated 
by law. Martial law established on such a basis 
destroys every guarantee of the Constitution, and 
effectually renders the ‘‘military independent of 
and superior to the civil power;” the attempt to do 
which by the king of Great Britain was deemed by 
our fathers such an offense that they assigned it to 
the world as one of the causes which impelled them 
to declare their independence. Civil liberty and this 
kind of martial law cannot endure together; the 
antagonism is irreconcilable; and, in the conflict, 
one or the other must perish. ” * * * * 

‘‘Martial law cannot arise from a threatened in¬ 
vasion. The necessity must be actual and present; 
the invasion real, such as effectually closes the courts 
and deposes the civil administration.” 

* 1 * * # * * * * * * * 

‘‘Martial rule can never exist where the courtsaro 
open and in the proper and unobstructed exercise 
of their jurisdiction. It is also confined tQ the 
locality of actual war.” 

The court was unanimous in the decree 
which was made in this case, though four of 
the judges dissented from some of the opin- 








ions expressed by the court. Yet these dis¬ 
senting judges united in a declaration that 
martial law can only be authorized in time of 
war, and for the purpose of punishing crimes 
against the security and safety of the national 
forces. But no member of the court gave the 
least support to the proposition that martial 
law could be declared to punish citizens of the 
United States where the courts of the United 
States were open, and where war, by its flam¬ 
ing presence, has not made the administration 
of justice difficult or impossible. The Chief 
Justice, who delivered the dissenting opinion, 
and in which all the dissenting judges con¬ 
curred, said: 

“ Martial law proper is called into action by Con¬ 
gress, or temporarily, when the action of Congress 
cannot be invited, and in the case of justifying or 
excusing peril, by the President, in times of'insur- 
rection or invasion, or of civil or foreign war, within 
districts or localities, where ordinary law no longer 
adequately secures public safety and private rights. 

“We think that the power of Congress, in such 
times and in such localities to authorize trial for 
crimes againstthe security and safety of the national 
forces, may bederived from irsconstitutionnl author¬ 
ity to raise and support armies and to declare war, 
if not from its constitutional authority to provide 
for governingThe national forces." 

I have quoted not only the opinion of the 
court, but that of the dissenting judges, for the 
purpose of exhibiting the unanimity of the 
court on the main questions relating to martial 
law. i cannot think that this House will, at 
this time, take such au extreme and unpre¬ 
cedented measure. 

Sir, this provision means war, or it means 
nothing; and I ask this House whether we are 
now reray to take this step? Shall we “cry 
havoc and let slip the dogs of war?” 

I have taken a humble part in one war, and 
I hope I shall always be ready to do any duty 
that the necessities of the country may require 
of me ; but 1 am not willing to talk war or to 
declare war in advance of the terrible neces¬ 
sity. Are there no measures within our reach 
.which may aid in preventing war? When a 
, savage war lately threatened our western Iron- 
tiers we sent, out commissioners of peace in the 
hope of avoiding war. Have we done all in 
our power to avoid that which this section con¬ 


templates? I hope the committee will bring 
in a companion measure that looks toward 
peace and enable U3 to send the olive branch 
with the sword. 

I hope this House will grant general amnesty 
to all except to thqse who held high official 
trust under theUnited States, and then break¬ 
ing their oaths went into rebellion. We should 
enlist both the pride and the selfishness of the 
people on the side of good order and peace. 
But I remind gentlemen that we have not even 
an indication or suggestion from the President 
that such a remedy as martial law is needed ; 
and yet we are called upon to authorize the 
suspension, not only of the great writ, but of 
all laws, and that, too, in advance of any actual 
necessity for it. ’ 

Mr. SHELLABARGER. My colleague will 
observe that the state of things under which 
! alone martial law may be declared is particu- 
I larly described in the bill. 

Mr. GARFIELD, of Ohio. I know that 
the bill states the circumstances under which 
martial law may be declared; but why should 
we now alarm the country by this extreme 
measure? 

Mr. SHELLABARGER. Because Congress 
may not be in session when the emergency 
a nses. 

Mr. GARFIELD, of Ohio. When neither 
the courts nor the President, with the Army 
and Navy to aid in enforcing the laws, can 
keep the peace, the President will be justified 
in calling Congress together. No stronger 
reason for convening Congress could arise 
than the necessity for martial law. 

In conclusion, Mr. Speaker, I have only to 
say that, within the limit^vif our power, I will 
aid iti doing all things that are necessary to 
enforce the laws of the United States, to pro¬ 
tect and defend every olfioer of the Govern¬ 
ment in the free and full exercise of all his 
functions, and to secure to the humblest citizen 
the fullest enjoyment of all the privileges and 
immunities granted him by the Constitution, 
and to demand for him the equal protection 
of the laws. 

All this can be done by this hill when 
amended as I have ventured to suggest. 




















L'iHim,L? F CONGRESS 






